P. v. Rodriguez

Filed 10/11/07 P. v. Rodriguez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Patrick Donahue, Judge. Affirmed.

Law Offices of Vincent J. LaBarbera and Vincent J. LaBarbera for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Matthew Mulford, Michael T. Murphy and Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Introduction

Defendant Victor Rodriguez was convicted of two counts of committing a lewd act on a child and two counts of child annoyance. Defendant, then a 48-year-old high school music teacher, placed his hand on the stomachs and chests of four female students, under their clothing, ostensibly to show them the location of their diaphragms and to help them learn proper breathing techniques to improve their singing. Defendant argues there was insufficient evidence to support his convictions. We affirm.

With respect to the convictions for committing a lewd act on a child, there was sufficient evidence from which the jury could reasonably infer defendant had the intent of arousing, appealing to, or gratifying his own lust or passions or sexual desires. The incidents occurred in a small interior office space with the door closed, or in a larger choral room when defendant and the victim were alone. Immediately before touching one of the students, defendant had told her she was getting a B grade in his class, and she had inquired about how to get an A instead. Defendant tried to speak to this student by telephone the evening of and early the morning after the incident.

With respect to the convictions for child annoyance, there was sufficient evidence defendants conduct was objectively annoying or disturbing to the victims. Six female students testified defendant had committed similar acts against them, and all felt uncomfortable. A reasonable juror could conclude an objectively reasonable person would find it disturbing or annoying for an adult male teacher to place his bare hand under the clothing of a minor female student in the area of her stomach and chest, no matter what his stated objective was in doing so. Additionally, there was sufficient evidence from which the jury could reasonably infer defendants conduct was motivated by an unnatural sexual desire. One of the child annoyance incidents occurred in the small interior office space with the door closed; the other occurred when others were present in the choral room, but when the victims back was turned away from the potential witnesses. Approximately six months before the incidents in question, after two other female students complained about similar conduct, defendant was warned in writing by the high school principal to change his teaching techniques and to avoid being alone with a student. Defendant agreed in writing to do so. The jury could reasonably infer an unnatural sexual desire for the victims caused him to risk further discipline by violating that agreement.

Statement of Facts and Procedural History

Evidence of Past Acts

Defendant was a music teacher at Marina High School in Huntington Beach. In February 2003, Beatriz R., then 17 years old, was a student in defendants chorus class. To determine the students vocal abilities on the first day of class, defendant had them sing individually for him in a private room, while he played the piano. This room was later identified as the music library, a small room of approximately 10 by 10 feet with two doors and no windows. Beatriz entered the room and defendant closed the door. After Beatriz began singing, defendant asked her if she knew where her diaphragm was. When Beatriz replied that she did not, defendant showed her the location of the diaphragm on his own body. Defendant told Beatriz to find her own diaphragm, and then to sing more. As she did so, defendant reached underneath her shirts and placed his hand on her stomach and between her breasts. Defendant told Beatriz to continue singing after about a minute, he removed his hand and told her she could leave.

Beatriz felt scared and uncomfortable. When she asked other students about their experiences, they said defendant had only had them sing. Beatriz told the assistant principal about the incident and never returned to defendants class.

M.A. was a 16-year-old student in defendants class in February 2003. On the same day as the incident involving Beatriz, M. entered a private room to do a vocal test for defendant during singing class. After telling M. she needed to sing from her diaphragm and showing her where his own diaphragm was located, defendant reached under her shirt and placed his hand on her stomach, with his thumb underneath her bra strap between her breasts. Defendant then instructed M. on breathing exercises and told her to send in the next student. M. felt really weird about what happened, and spoke to a school office employee and either the principal or the vice-principal.

The high school principal met with defendant the day after Beatriz and M.s reports. Defendant denied touching Beatriz in any way, fashion, or form. Defendant was placed on administrative leave while an investigation was conducted.

The principal again met with defendant on March 13, 2003, and advised him he could return to teaching under certain conditions. These conditions were identified in a letter of reprimand, which was reviewed and signed by defendant. The letter of reprimand reads, in relevant part, as follows: On February 19, 2003, you were engaged in the following unprofessional conduct: Inappropriate physical contact, touching of a female student enrolled in your period 3 Chorus 1 class. This conduct occurred in your classroom while you were alone with the student. You touched the student in the area of her diaphragm as you were determining her vocal range. [] This conduct violates professional conduct guidelines related to your position as a teacher and Band Director. Such unprofessional conduct is also a violation of Board Policy and Administrative Regulation 4119.1.1; Sexual Harassment. [] Your actions negatively impacted the student by making her feel uncomfortable in the Chorus 1 class. The student also indicated she felt confused and embarrassed by your conduct. [] Effectively [sic] immediately, you are directed to refrain from any type of physical contact with all Marina High School students. Additionally, you are directed to not be alone with any students in your classroom, office, or any other facility on the campus. The letter of reprimand directed defendant to [r]eview and correct your current instructional methods and practices related to determining a students vocal range, and [t]ake all necessary precautions to insure [sic] you are not alone with any student at any time in any classroom or office on the Marina High School campus.

The appellate record contains no explanation why the incident between defendant and M. was not addressed by the letter of reprimand.

Defendant wrote a letter in response in which he stated, I never touched the female student inappropriately. Defendant noted in his letter that an unidentified officer with the Huntington Beach Police Department had told him the police were not going to pursue this incident because no crime had been committed, or even alleged. Defendant also used his letter to clarify the conditions imposed by the letter of reprimand, and agreed to the following: I will no longer teach breathing technique. I cannot guarantee, however, that I will never be in my office with one student, because I sometimes will find myself in my office when a student enters to get my signature to enroll in a music class. I also teach band students how to play band instruments. That instruction is one on one. I will always keep the band room and choir room doors open when I am teaching a student how to play an instrument. During lunch I sometimes help students prepare a solo piece for a concert, or the National Anthem or Alma Mater for an upcoming school rally. I have always (and will always) insured [sic] that the door remains open, and other students can enter and exit at will. (Italics added.)

Cassandra F. (Count 4 Child Annoyance)

Cassandra F. (Cassie) was a 15-year-old student in the fall of 2004. Sometime between September and November 2004, Cassie approached defendant for help preparing for the school talent show. Cassie and her friend Katie G. met with defendant in the choral room at lunchtime. Katie and other students sat on the steps eating lunch while Cassie warmed up her voice. Cassie was facing defendant, and her back was to Katie and the other students. Defendant told Cassie she needed to sing from her diaphragm, reached underneath her shirt, and placed his hand on her stomach right by her bra strap. Defendant told Cassie to sing and told her to try to feel her diaphragm as well. Cassie testified she felt uncomfortable when defendant touched her. Cassie and Katie discussed the incident, but decided it must be okay because it was done in front of other people.

Cassie kept an appointment with defendant a couple of days later, but brought another friend, Nicole H., because she did not want to be alone with defendant. Cassie testified defendant touched her in the same place, but over her shirt, so she did not feel uncomfortable. Nicole, however, testified defendants hand went up Cassies shirt, and Cassie looked surprised. Nicole advised Cassie to say something to defendant if she was uncomfortable.

Cassie did not tell anyone else about the incidents for about a year. She did not think it was a big deal and wanted to let it slide. When other students came forward about incidents involving defendant, Cassie told her mother and they went to the police. Cassie told the investigator she believed defendant was only trying to teach her to sing.

Heidi M. (Count 2 Lewd Conduct with a Minor)

Heidi M. was 14 years old in 2004, and was enrolled in defendants choir class. During class one day in October or November, Heidi told defendant she had a cramp in her side. Defendant told Heidi to meet with him after class. Heidi and defendant met in the choir room during the lunch period; no one else was present. Defendant had Heidi do some breathing exercises and placed his hand on her side to apply pressure to the area of the cramp, which alleviated the pain. Defendant asked Heidi if he could place his hand under her T-shirt to see if something was wrong with her muscle; she agreed. Defendant placed his hand on Heidis stomach, and underneath and between her breasts. Heidi left after defendant told her to visit him again if her side continued to hurt.

Months later, Heidi told her mother about the incident and reported it to the police. Heidi had not told anyone about the incident earlier because she wanted to forget it rather than make a big deal about it.

Dana D. (Count 3 Child Annoyance)

Dana D. was 15 years old, and met with defendant after school on December 10, 2004, to prepare for a campus talent show. Dana sang a song in the choral room while defendant accompanied her on piano; other students were present. Defendant told Dana she was breathing incorrectly, and asked her to follow him so they could practice somewhere quiet. They went into the music library, and defendant closed the door.

Defendant told Dana it was important to breathe correctly while singing and asked her to place her hand on her own stomach while doing breathing exercises. Defendant told Dana she was doing it wrong, and placed his hand on her stomach, with one finger between her breasts. Defendant then said Danas shirt was too thick, reached underneath her shirt, and placed his hand on top of her bra. Defendant then said he needed to show her how to breathe correctly, but her bra was in the way. Defendant moved his hand under Danas bra and told her to continue breathing. Defendant stood behind Dana with his arms wrapped around her. Defendant told Dana he needed to feel her diaphragm go up, and pushed on her stomach as she breathed.

Dana was in shock and was scared. She had been taught by other instructors, but none had ever touched her that way. She was truly scared to death. Dana told defendant she wanted to practice her music, after which he stopped touching her. Defendant told Dana he would have a table for her to lie on the next day to make it easier for him to feel her diaphragm while she was breathing.

Dana told her boyfriend and her parents a little bit about what happened, but did not share all the details because she felt really weird. A few days later, Dana learned that something similar had happened to another student and she reported the incident to campus police.

Carolyn R. (Count 1, Lewd Conduct with a Minor)

Carolyn R., then 15 years old, was a student in defendants musicianship class. On or about December 13, 2004, defendant told Carolyn she was receiving a B in the class, and she would need to sing or perform five times during the semester to obtain an A. Carolyn asked defendant to help her improve her singing voice. Defendant agreed to teach Carolyn some breathing exercises and techniques to improve her singing. Defendant told Carolyn to follow him, and led her through his office into the music library. Defendant closed the door.

Defendant told Carolyn to remove her sweater and watched her breathe. Defendant told Carolyn she was breathing from her chest, rather than her diaphragm. He placed one hand on Carolyns chest and told her to breathe again. Then he placed his other hand on her stomach, underneath her shirt, and told her to try to breathe from her diaphragm. Carolyn felt uncomfortable but did not know what to do. Defendant told Carolyn her diaphragm was where her bra was, lifted her bra strap and placed his hand underneath her bra, between her breasts. The bell rang, and Carolyn left the room.

Carolyn was confused by what had happened, and was not sure whether defendants behavior was appropriate. Other students in whom Carolyn confided advised her to report the incident, which she did. Defendant called Carolyns home that evening and at 6:00 a.m. the next morning, but Carolyn did not talk to him. A few days later, Carolyn talked to Dana, who confirmed something similar had happened to her when she was alone with defendant. Carolyn urged Dana to report the incident.

Defense Case

Defendant testified on his own behalf that he had taught voice and music to over 1000 students, both in high schools and in private instruction. Defendant had never received any complaints or reprimands, or been the subject of investigation (other than as detailed above). Defendant denied ever having touched a student inappropriately or with an inappropriate intent. Defendant testified, however, that it could be inappropriate for a teacher to touch a students bare skin under their shirt: I think the level of appropriateness is dependent upon where they are touching and the intent.

To explain to his students the correct way to breathe using the diaphragm, defendant would verbally instruct the students, then have the students read a written pamphlet, then use his own body to show the location of the diaphragm and how it moves when breathing properly, then have the students place their own hands over their own diaphragms, and finally place his hand over the students hands. Defendant testified heavy clothing makes it hard to see if a student is breathing correctly. Defendant admitted having placed his hand under students shirts while showing them this breathing technique, but testified he did so solely and primarily to show the student the actual ripple effect [in the diaphragm muscle] she should be looking for.

Defendant admitted touching each of the girls who testified, but explained his hand was over their hands, either over or under their shirts; he denied ever having placed his hand directly on the girls stomachs or chests. Defendant explained that in each case, he touched them to help them learn the proper breathing techniques, and not for purposes of sexual arousal or gratification. Defendant called Carolyns home to see if her parents wanted to schedule a conference to discuss her grade.

When defendant was asked why he had placed his hand on Dana, Carolyn, Heidi, and Cassie, despite having been warned in writing not to do so after Beatriz and M. complained about his conduct, he responded: [T]hese students come to me for help and requests for clarification on how their singing can improve; and when students come to me for help, I am accustomed to trying to help them, and I feel it is just cheating them educationally if I withhold any way I can help them become better. And when I help them breathe correctly, their singing improves almost immediately. And for the most part they are happy with that, and they are glad to come back, and they are glad to be able to sing. It gives them more confidence.

Another student, Kendra, testified defendant had shown her where her diaphragm was, but never touched her under her clothes. Kendra did not think defendants teaching techniques were inappropriate, and did not feel uncomfortable around defendant. Defendant helped improve Kendras singing. When Carolyn told Kendra what happened to her, Kendra suggested that Carolyn tell defendant she was uncomfortable with his teaching techniques.

Several witnesses testified on defendants behalf that he was honest and truthful, and they had never observed him act unprofessionally toward any student.

Expert Testimony

Both the prosecution and the defense presented expert testimony on music instruction. Both experts agreed that breath control is an extremely important concept for a music student to understand and that the student must breathe from the diaphragm. There are different ways to teach the concept but all have the same goal. Neither had ever touched a student under the students clothing as part of explaining the proper way to breathe.

Procedural History

Defendant was charged in an amended information with two counts of committing a lewd act upon a child (Pen. Code,  288, subd. (c)(1) [counts 1 and 2]), and two counts of misdemeanor child annoyance (id.,  647.6, subd. (a) [counts 3 and 4]). A jury convicted defendant of all counts. The trial court sentenced defendant to four years formal probation, on conditions, including that he serve one year in county jail, have no direct or indirect contact with the victims, complete a sex offender program, and not associate with minors or frequent places where minors congregate, unless in the company of a responsible adult over the age of 21 who had been approved by the probation department or the court and who would be willing to monitor defendants behavior. Defendant timely appealed.

Discussion

I.

Standard of Review

Defendant argues there was insufficient evidence to sustain his convictions on all four counts. In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] (People v. Steele (2002) 27 Cal.4th 1230, 1249.) We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We may reverse for lack of substantial evidence only if upon no hypothesis whatever is there sufficient substantial evidence to support the convictions. (People v. Bolin (1998) 18 Cal.4th 297, 331.)

II.

Penal Code section 288, subdivision (c)(1)

To establish a violation of Penal Code section 288, subdivision (c)(1), the prosecution must prove (1) defendant willfully touched the body or any part of the body (2) of a child then 14 or 15 years of age (3) when defendant is at least 10 years older than the child (4) with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of the defendant or the child. (Pen. Code,  288, subds. (a) & (c)(1); Judicial Council of Cal. Crim. Jury Instns. (20062007) CALCRIM No. 1112.) Defendant challenges the sufficiency of only the final element.

Criminal intent will rarely be shown by direct evidence and must frequently be inferred from a defendants conduct. The criminal intent required to prove a violation of section 288 is the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of perpetrator or victim. The intent with which the act is done is manifested by the circumstances under which the act is committed. [Citation.] Each case involving a lewd act must be decided on its own facts. [Citations.] Intent may properly be inferred from evidence of other specific acts of a similar nature. [Citation.] (People v. Gilbert (1992) 5 Cal.App.4th 1372, 1380.)

The trier of fact may look to many different factors to determine whether defendant acted with the requisite intent, including the manner of touching (People v. Martinez (1995) 11 Cal.4th 434, 445), other acts of lewd conduct admitted or charged in the case (People v. Ewoldt (1994) 7 Cal.4th 380, 402), and the relationship between the parties (People v. McCurdy (1923) 60 Cal.App. 499, 502).

Six female students testified defendant placed his bare hand under their clothing (and in some cases, under their bra straps) and on their stomachs and chests. Many of the acts occurred in the school music library, with the door closed; others occurred in a larger, empty room. Defendant was a teacher at the school all six students attended, placing him in a position of authority over the students. The two acts of alleged lewd conduct occurred after defendant had been warned in writing that similar acts were unprofessional, and after defendant agreed in writing that he would avoid such acts in the future.

One of the students, Carolyn, testified that immediately before defendant placed his hand on her bare skin, they had been discussing her B grade in the class, and how she might raise that grade to an A, from which the jury could infer defendant was implying a connection between a higher grade and Carolyns permitting him to touch her. Defendant called Carolyns home the evening after the alleged act, and again very early the following morning; the jury was entitled to reject his contention that it was purely coincidental that he called to see whether her parents might want to schedule a conference to discuss her grade on the same day she alleged he committed a lewd act against her.

Defendant argues there was a total absence of actions of a sexual nature because defendant touched Carolyn and Heidi within his role as a music teacher. We do not agree. An adult male placing his hand under the clothing of a minor female, no matter the circumstances, can be an act of a sexual nature. Even if defendants actions were a part of a teaching exercise, it was undisputed that other methods of teaching proper breathing techniques were available. Defendants choice of such an instructional method, after he had been directed not to use that method and had agreed in writing not to do so, could properly lead to a reasonable inference on the part of the jury that defendant had the necessary intent to convict him of committing a lewd act on a child.

At oral argument, defendant contended that, at the time the incidents involving Beatriz and M. were investigated, he was told by the police such conduct was not a crime. However, the jury was free to disbelieve that an uncorroborated hearsay statement had been made by an unidentified police officer to the effect that no crime had been committed, or even alleged. Additionally, the jury was required to apply the law with which it was instructed (Pen. Code,  1126; People v. Williams (2001) 25 Cal.4th 441, 454-455), not an alleged hearsay statement by a police officer. Any failure to pursue criminal charges in connection with the incidents involving Beatriz and M. cannot negate the evidence and inferences of intent with regard to the later incidents involving Carolyn and Heidi.

There was sufficient evidence from which the jury could reasonably infer defendant placed his hand under the clothes and on the bare skin of Carolyn and Heidi with the intent of arousing, appealing to, or gratifying his lust, passions, or sexual desires.

III.

Penal Code section 647.6, subdivision (a)

To prove a violation of Penal Code section 647.6, subdivision (a), the prosecution must prove (1) the defendant engaged in conduct directed at (2) a child under the age of 18, (3) which would have caused a normal person, without hesitation, to be disturbed, irritated, offended, or injured, and (4) which was motivated by an unnatural or abnormal sexual desire in the victim. (Pen. Code,  647.6, subd. (a); People v. Lopez (1998) 19 Cal.4th 282, 289; CALCRIM No. 1122.) Defendant contends on appeal there was insufficient evidence of the third and fourth elements namely, that his actions were objectively offensive or annoying, and that they were motivated by a sexual desire.

To meet the element of objective annoyance, defendants conduct need not be overtly sexual. The element was established when the defendants offered to give the child victims a ride in their car, but refused to let the child victims out of the car after driving a short distance (In re Sheridan (1964) 230 Cal.App.2d 365, 370-371), where the defendant repeatedly drove alongside a 12-year-old girl riding her bicycle, stared at her and made gestures toward her with his hand and lips (People v. Thompson (1988) 206 Cal.App.3d 459, 461-462), and where the defendant took photographs of young girls while surreptitiously aiming his camera up a childs dress rather than photographing her face or entire clothed body (People v. Kongs (1994) 30 Cal.App.4th 1741, 1751).

In this case, defendants act of placing his hand under a female students shirt was objectively disturbing or annoying. Six girls testified defendant placed his hand under their shirts, on the bare skin of their stomachs and chests, and this conduct made them scared, fearful, or uncomfortable. Four of these acts  including the acts involving Dana and Cassie occurred after defendant had been informed in writing that similar actions had made at least one female student uncomfortable, confused, and embarrassed. One student testified she did not feel comfortable when defendant placed his hand over her diaphragm, on top of her clothes, as part of his attempt to teach her proper breathing techniques. No witness, however, testified she did not or would not feel uncomfortable after defendant placed his hand under her clothing. There was sufficient evidence of objective annoyance on the part of the complaining witnesses.

There was also sufficient evidence for the jury to have concluded defendants conduct was sexually motivated. It is true there was evidence defendants conduct was part of his teaching techniques. Defendant had agreed in writing to abandon those techniques, however, and had been informed in writing that continuing to touch students in this way could result in further disciplinary action. Also, there were other ways to teach breathing technique, and the experts for both sides testified they had never placed their hands under a students clothing. The jury could reasonably infer that defendant continued to engage in such conduct, despite the warnings he received and the written promises he made, because of unnatural or abnormal sexual interest in the victims.

Disposition

The judgment is affirmed.

FYBEL, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.